SCOPE NY

The Importance of Context in Constitutional Interpretation

07/15/2019 8:06 AM | Anonymous

Tom Reynolds, S.C.O.P.E. Treasurer

One thing that should irritate everyone is a statement taken out of context to create an invalid impression; an impression counter to one we would get if made in context.

Why is this concept of “in context” so important to Second Amendment advocates?

The “in context” principle should apply when interpreting our Constitution. Each individual part should be interpreted in the overall context within which the Constitution was written and that context is, beyond any reasonable doubt, to narrowly limit the federal government’s power. Even the far left that advocates an all-powerful federal government are conceding this when they argue the Constitution is out of date and needs changing. They are, in fact, agreeing that the U.S. Constitution limits the power of the federal government that they wish to expand.

The Second Amendment says that “…the right of the people to keep and bear arms, shall not be infringed”, but taken in the context of a Constitution which limits federal power, it also implies that a limited federal government has not the power to chip away at that right.

And before anyone gets excited about the states having this power, the Fourteenth Amendment says:“…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. Therefore, every state law is also subject to the “in context” concept of how our privileges and immunities are interpreted.

Let’s look at the framing of our Constitution in an historically accurate context to prove my point about limited government.

During and after the Revolutionary War, the 13 former colonies became states. Not states as we think of them now, but “Nation States”. Each state viewed themselves as self-governing sovereign states, but they also saw the need for some sort of cooperative arrangement, so they adopted the Articles of Confederation to define their relationship. Words have meanings and a confederation is a union of sovereign states, united for purposes of common action.

A later example of nations preserving their individuality while engaging in cooperative actions was during World War II. The “Allies” consisted of many sovereign countries: USA, England, France, Poland, etc. No one believes these countries gave up their individual status as sovereign countries by uniting against Germany, Italy and Japan.

After the Revolutionary War, the “Nation States” preserved their individuality but within a few years it became evident that the thirteen “Nation States” needed a stronger arrangement than a confederation, for self-protection and for economic reasons. But these “Nation States” had a great fear of a powerful central government trampling on State’s and individual’s rights. So, they built many elements into the Constitution to prevent a runaway government. Examples of what we refer to as “Checks and Balances” are: three coequal branches of government; a legislative branch divided into two houses each representing different constituencies; the Electoral College; voting on a contested Presidential election.

Fear of a strong government almost stopped the Constitution from being approved by the states until a Bill of Rights was promised. James Madison and Alexander Hamilton argued against a Bill of Rights being needed as they believed the Constitution did not give the federal government the power to take away those rights. (Thank goodness they lost that argument about the need for a Bill of Rights.) Many people will be surprised to know that New York State was one of the “Nation States” that would not approve the Constitution until a Bill of Rights was promised.

The first nine amendments in the Bill of Rights have to do with protecting our individual rights from the government while the tenth amendment takes another tack and gives further evidence that the Constitution was meant to limit the federal government’s power. Number ten says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved by it to the States respectively, and to the people”.

The idea of a constitutionally limited government held sway until Franklin Roosevelt became President – although an earlier President, Woodrow Wilson, would also have shredded the Constitution if he had been more capable. Roosevelt used the Great Depression crisis to destroy the Tenth Amendment and 140 years of limited federal government precedent.

An example of one part of the Constitution being interpreted out -of-context of a limited government was FDR’s overuse of the “Commerce Clause”. Article 1 section 8 of the Constitution says, “The Congress shall have the power…to regulate commerce…among the several states…” Roosevelt’s administration said that a farmer was engaged in interstate commerce even though the farmer did not sell his products in interstate commerce and only sold them locally or used them himself. FDR’s rationale was that by not engaging in interstate commerce, the farmer was affecting interstate commerce. FDR’s insane trampling of the Constitution was only possible with the help of the other branches of the government as the Supreme Court upheld FDR’s decision!

Those of us who are constitutional fundamentalists – like Justice Antonin Scalia - believe the U.S. Constitution should be interpreted in line with the meaning of the words when they were written. If those words need changing or updating to provide for a more powerful government, there is a way of amending it by approval of the States. It is not subject to judges amending it for any reason, no reason, or political reasons.

When an amendment is approved, it becomes as much a part of the Constitution as the first seven articles that were originally approved. The Amendments are not an add-on that can be ignored at will. They are the Constitution and a limited federal government does not have the power to infringe on them. Any interpretation of any part of the Constitution must be made with the acknowledgement that the Constitution very narrowly limits the ability of the federal government or state governments to infringe on our rights. 

A 2nd Amendment Defense Organization, defending the rights of New York State gun owners to keep and bear arms!

PO Box 165
East Aurora, NY 14052

SCOPE is a 501(c)4 non-profit organization.

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